Defendant, Juan M. Maiden, previously appealed two convictions of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1994)), and this court affirmed in an unpublished order (People v. Maiden, No. 2--99--0306 (2000) (unpublished order under Supreme Court Rule 23)). Defendant now petitions for rehearing. In this petition, defendant requests that we reconsider our decision regarding whether his speedy-trial right was violated. Additionally, defendant raises for the first time whether the imposition of consecutive sentences for his two convictions violated the strictures of the due process clause (U.S. Const., amend. XIV).

Defendant first argues that this court failed to address his argument that the State intentionally withheld exculpatory DNA evidence and consequently should be charged, for speedy-trial purposes, with the time it took defendant to procure that evidence.

Initially, we note that in our earlier decision we concluded that the trial court did not abuse its discretion in attributing this delay to defendant. The trial court noted the complexity of defendant's discovery request, specifically that it was addressed to no one in particular and required evidence to be gathered from two facilities. We find the trial court's reasoning adequate to support its exercise of its discretion. Furthermore, we note that defendant could have proceeded to trial within the statutory period. However, he chose to wait for his discovery request to be answered. Had the State failed to tender exculpatory evidence, a Brady violation would have occurred. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The remedy for a Brady violation is a new trial. People v. Sims, 166 Ill. App. 3d 289, 310 (1987). Defendant may not convert what would otherwise be grounds for a new trial into a dismissal under the speedy-trial statute (725 ILCS 5/103--5(a) (West 1994)) by refusing to proceed to trial.

Defendant next argues that the imposition of consecutive sentences violated his rights under the due process clause of the United States Constitution. U.S. Const., amend. XIV. This issue was not raised prior to this petition. However, "[s]entencing issues may be reviewed as plain error where the issue is one of misapplication of law, because the right to be sentenced lawfully is substantial because it affects a defendant's fundamental right to liberty." People v. Keene, 296 Ill. App. 3d 183, 186 (1998). In this argument, defendant relies extensively on Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The United States Supreme Court issued this decision while defendant's appeal was pending. Accordingly, Apprendi is applicable to the present case. See Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). We will examine the merits of defendant's argument.

Defendant was convicted of two counts of aggravated criminal sexual assault. 720 ILCS 5/12--14(a)(2) (West 1994). This offense is set forth in the statute governing consecutive sentencing as requiring consecutive sentencing. 730 ILCS 5/5--8--4 (West 1994). In relevant part, that statute, at the time of the offenses of which defendant was convicted, provided:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12-13 or 12-14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively." 730 ILCS 5/5--8--4 (West 1994).

The State argued that consecutive sentences were mandatory because defendant was convicted of two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1994)) that occurred during a single course of conduct (730 ILCS 5/5--8--4 (West 1994)). The trial court accepted the State's reasoning and sentenced defendant to two consecutive terms of 20 years' imprisonment.

Defendant contends that the question of whether the acts he committed were part of a "single course of conduct during which there was no substantial change in the nature of the criminal objective" *fn1 (730 ILCS 5/5--8--4 (West 1994)) should have been charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. Defendant relies on Apprendi for the proposition that a fact that subjects a defendant to punishment more severe than the statutory maximum for the offense in question must be submitted to the jury. 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-3. Defendant also points us to People v. Clifton, Nos. 1--98--2126, 1--98--2384 cons. (September 29, 2000). In that case, the First District held that Apprendi applies to certain factual determinations that result in consecutive sentencing as well as to statutes that extend the range of a sentence for a particular offense beyond the statutory maximum. Clifton, slip op. at 52.

In Apprendi, the Supreme Court considered the constitutionality of a New Jersey statute that required an extended term of imprisonment if the sentencing judge found, by a preponderance of the evidence, that the defendant committed the underlying offense for the purpose of intimidating someone on the basis of race, color, gender, handicap, religion, or sexual orientation. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The statute had the effect of increasing the punishment to which the defendant could be subjected from between 5 and 10 years' imprisonment to between 10 and 20 years' imprisonment. The Supreme Court first recognized that judges typically have wide discretion both in determining an appropriate sentence and in choosing what factors to rely on in making that decision. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358. However, the Court noted that this discretion is circumscribed by statutory limits establishing the punishment for particular offenses. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358. The Court held the New Jersey sentencing scheme unconstitutional because it allowed for a sentence in excess of the statutory maximum for the underlying offense on a finding of fact made by the sentencing judge. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366-67. When a factual finding enhances a sentence beyond the range established in the statute defining the offense, it must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Apprendi must be contrasted with McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). In that case, the Supreme Court addressed the constitutionality of a Pennsylvania statute that set a mandatory minimum sentence for certain felonies on a judicial finding that the defendant visibly possessed a firearm during the commission of the offense. McMillan, 477 U.S. at 81, 91 L. Ed. 2d at 73, 106 S. Ct at 2413. The Court noted that the statute did not alter the maximum punishment the defendant could receive, but merely limited a judge's discretion in selecting a sentence within the range established by the underlying offense. McMillan, 477 U.S. at 87-88, 91 L. Ed. 2d at 77-78, 106 S. Ct at 2417. Essentially, the legislature "took one factor that has always been considered by sentencing courts to bear on punishment *** and dictated the precise weight to be given that factor." McMillan, 477 U.S. at 89-90, 91 L. Ed. 2d at 78-79, 106 S. Ct at 2418. The Court concluded that it was permissible to treat visible possession of a firearm as a sentencing factor and to allow this fact to be determined by a judge rather than a jury. McMillan, 477 U.S. at 93, 91 L. Ed. 2d at 81, 106 S. Ct at 2420.

From these two cases, the rule emerges that a statute may narrow a judge's discretion in sentencing, as long as it does so within limits established by the underlying offense. However, where a statute mandates a punishment beyond that authorized by the underlying offense, the factual findings that trigger the statute's application must be submitted to the jury. In the present case, the former portion of this rule applies. The sentencing judge could have imposed consecutive sentences pursuant to his discretion. People v. Jefferson, 260 Ill. App. 3d 895, 914 (1994); People v. Hemphill, 259 Ill. App. 3d 474, 477 (1994); People v. Morgan, 14 Ill. App. 3d 232, 236 (1973) ("Once a defendant has been convicted of two or more offenses which do not result from the same conduct, the trial court may in its discretion impose consecutive sentences upon him"). That consecutive sentences were deemed mandatory because the court found that both sexual assaults occurred during a single course of conduct did not result in a sentence beyond that which the court could have otherwise imposed. Consequently, Apprendi was not violated.

Apprendi counsels us to look at the effect of the statute in determining whether a violation occurred. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. In light of the present facts, only two situations were possible. Either defendant's offenses were part of a single course of conduct or they were not. If they were not part of a single course of conduct, the trial judge could have sentenced defendant to consecutive terms by virtue of his discretion. Jefferson, 260 Ill. App. 3d at 914. If they were part of a single course of conduct, the court had to sentence defendant to consecutive terms pursuant to the consecutive sentencing statute. 730 ILCS 5/5--8--4 (West 1994). Because defendant was convicted of aggravated criminal sexual assault, a finding that the two assaults occurred within a single course of conduct automatically triggered mandatory consecutive sentences under the statute. 730 ILCS 5/5--8--4 (West 1994). No further finding of fact was necessary. It is important to note that, because these were sexual assault convictions, the prohibition against consecutive sentencing contained in the statute never could have applied to defendant. 730 ILCS 5/5--8--4 ...

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